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TMI Blog2018 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... in notification, ordinarily it cannot be presumed that same is retrospective in nature - the formula prescribed in notification dated 05.12.2008 will be effective prospectively, from its date of publication in the Official Gazette. Since the appellant has taken Cenvat credit due to wrong interpretation of the statutory provisions, it cannot be said that it had indulged into the activities of fraud, collusion etc. Therefore, the provisions of Rule 15 of the CCR 2004 cannot be invoked against the appellant for imposition of penalty. Appeal allowed in part. - E/3050/2009-Ex[SM] - A/50567/2018-SM[BR] - Dated:- 12-1-2018 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant: Mr. A. K. Prasad, (Advocate) Present for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Duty (CVD) amount. The formula prescribed in Rule 3(7)(a) ibid was in consonance with the notification dated 31.03.2003. However, when the said notification was amended on 01.03.2008, to raise the concession from 25% to 50% of the effective Customs duty, no corresponding changes were made in Rule 3(7)(a) ibid. The amendment was made subsequently on 05.12.2008 vide Notification No.48/2008-C.E. (N.T.). Since, the appellant had availed Cenvat credit of the CVD amount as per the formula prescribed under Notification No.10/2008-C.E., dated 01.03.2008, the department has objected to such availment of credit and confirmed the adjudged demand. 3. The ld. Advocate appearing for the appellant submitted that the amendment to Rule 3(7)(a) ibid sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T., Delhi-I Vs. T.T. Ltd. 2016 (45) STR 25 (Del.) and affirmed by the Hon ble Supreme Court, reported in 2017 (48) STR J 195 (S.C.), to state that amending notification cannot have the retrospective effect, unless and otherwise, so prescribed. 5. Heard both sides and examined the case records. 6. Payment of Central Excise duty by the EOUs is governed under the base notification dated 31.03.2003 and subsequent amended notification dated 01.03.2008. The said notifications providing the exemption/concessions are applicable only to the EOUs, on removal of excisable goods to the domestic area. The supplier, in this case, M/s Reliance Industries Ltd. had discharged the duty liability in terms of the above referred notifications for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, ordinarily it cannot be presumed that same is retrospective in nature. Thus, in my considered view, the formula prescribed in notification dated 05.12.2008 will be effective prospectively, from its date of publication in the Official Gazette. Accordingly, I am in agreement with the impugned order, so far as it confirmed the Cenvat demand alongwith interest on the appellant. 7. The issue decided by the Hon ble Supreme Court in the case of India Tobacco Association (supra) is entirely different than the case in hand, inasmuch as, while interpreting the word substitute used in the amending notification dated 27.11.1997, the Hon ble Court have held that by virtue of amendment in the base notification dated 07.04.1997, a mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Hon ble Delhi High Court in the case of T.T. Limited (supra), relied on by Revenue, wherein it has been held that if the amending notification is clarificatory, then there should be something enunciated in original/base notification itself. 8. In this case, since the appellant has taken Cenvat credit due to wrong interpretation of the statutory provisions, it cannot be said that it had indulged into the activities of fraud, collusion etc. Therefore, in my considered view, the provisions of Rule 15 of the Cenvat Credit Rules, 2004 cannot be invoked against the appellant for imposition of penalty. 9. In view of the above discussions and analysis, I do not find any infirmity in the impugned order, so far as it confirmed the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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